Lord Low of Dalston: My Lords, in moving Amendment 242A I shall also speak to Amendment 245A. These amendments aim to rule out the use of delegated powers to amend the protection of equality and human rights provided by EU law.
As a matter of constitutional principle, changes  to fundamental rights should be made by Parliament by primary legislation, not by Ministers through secondary legislation. However, as it stands, the Bill does not  rule out such changes being made by delegated powers. Delegated powers could be used to change the fundamental rights currently protected by EU law, such as rights to protection of personal data, children’s rights, the rights of disabled people, the right to human dignity and protection from discrimination, as well as workers’ rights, protections for pregnant women and nursing mothers, and rights to maternity leave.
There is a prohibition on changes to the Human Rights Act 1998. This is welcome as evidence of the Government’s commitment to the entrenchment of equality and human rights, but the Bill needs to do more if that commitment is to be reliably delivered. The Human Rights Act safeguards only rights enshrined in the European Convention on Human Rights. Rights underpinned by EU law are different and need separate protection. To ensure this, it is essential that the Bill is amended to guard against excessive transfer of power from Parliament to the Executive and to ensure that any changes to fundamental rights are subject to full parliamentary scrutiny.
It is important to be clear that the new scrutiny procedures introduced in another place, though welcome, do not address this concern. They provide a mechanism in the form of a new sifting committee to recommend that the affirmative scrutiny procedure be used. However, this procedure does not allow Parliament to amend secondary legislation. The fact that it does not provide for effective scrutiny is demonstrated by the fact that  there have been only 10 occasions since 1950 when delegated legislation has not been approved by Parliament under the affirmative scrutiny procedure. That is equivalent to one every six or seven years.
Stronger safeguards are therefore required in the Bill to exclude changes to equality and human rights from the scope of delegated powers and to require a Minister, when laying secondary legislation before Parliament under the Act, to make a statement that it does not reduce any protection provided under equality and human rights law. A number of amendments have already been debated that would provide these essential safeguards. I refer in particular to Amendments 82 and 82A in the name of the noble Baroness, Lady Hayter, which would prevent the use of secondary legislation under Clause 7 to make changes to the Equality Acts of 2006 and 2010; and Amendments 101A, 133A, 161 and 259 in the name of the noble Lord, Lord Adonis, which would prohibit the use of secondary legislation made under Clauses 7, 8, 9 and 17 to change laws relating to equality or human rights. I support those amendments. However, I wish to speak to two additional amendments, Amendment 242A and 245A, which continue to be necessary.
Amendments 242A and 245A, which emanate from the Equality and Human Rights Commission, give effect to the Government’s commitment that current protections in the Equality Acts of 2006 and 2010 will be maintained once we leave the EU by placing it on the face of the Bill. In their White Paper legislating for the UK’s withdrawal from the European Union, the Government promised that,
“all protections covered in the Equality Act 2006, the Equality Act 2010, and equivalent legislation in Northern Ireland …will continue to apply after we have left the EU”.
That welcome commitment followed the recommendation of the House of Commons Women and Equalities Select Committee that it is important that the Bill,
“explicitly commits to maintaining the current levels of equality protection”.
On the first day in Committee in the House of Commons, the Minister promised to introduce an amendment that would require,
“Ministers to make a statement before this House in the presentation of any Brexit-related primary or secondary legislation on whether and how it is consistent with the Equality Act”.—[Official Report, Commons, 21/11/17; col. 904.]
That was in response to concerns raised in the debate by Maria Miller MP, chair of the Women and Equalities Select Committee. The Government made an amendment on this point in the Commons which is now at paragraph 22 of Schedule 7. However, it fails to fulfil the Government’s commitment to maintain current equality protections and has the potential to undermine understanding of Ministers’ existing statutory duties. The Government’s approach requires Ministers to make an explanatory statement, including in relation to equality issues, when laying secondary legislation made under Clauses 7, 8 or 9 of the Act. However, it does not require a statement that current levels of protection will be maintained. It merely requires the Minister to explain whether and how equality legislation has been changed and that “due regard” has been had to the need to eliminate conduct prohibited by the Equality Act 2010.
There is nothing to stop the Minister having had “due regard” to this need to deciding to reduce protections. The duty to have due regard is already a requirement under the public sector equality duty and the Minister’s statement would do more than confirm that she or he has partially complied with an existing statutory duty. Furthermore, the requirement focuses on the first duty in the public sector equality duty—namely, to have regard to the need to eliminate discrimination, presumably because of the emphasis that parliamentarians placed on ensuring non-regression during debates in the House of Commons. However, the public sector equality duty also includes other duties—to have regard to the need to advance equality of opportunity, and to foster good relations.
The focus on just one aspect of the public sector equality duty rather than the whole risks confusion about whether Ministers are obliged fully to comply with the whole of the public sector equality duty as opposed to just this single limb of the duty. This must be rectified to ensure clarity and compliance with existing statutory duties. Again, the requirement applies only to certain enabling powers in the Bill under Clauses 7(1), 8 or 9. However, changes could still be made, for example, under Clause 17, which provides a very wide power:
“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate in consequence of this Act”,
without the need for any explanatory statement.
Amendments 242A and 245A would remedy that deficiency by requiring a Minister, when laying secondary legislation before Parliament under any enabling provision in the Act, not just those clauses to which I have just referred, to make a statement that,
“it does not remove or diminish any protection provided by or under equalities legislation”.
I beg to move.

Baroness O'Neill of Bengarve: My Lords, who wills the ends wills the means. The Government committed themselves to an open border, to my knowledge, some 20 months ago. I was very happy to hear a previous Secretary of State make that commitment quite explicit in a public space. I then asked: how? We are still waiting for any answers as to how, and cynicism is growing. It does not seem that the Government are thinking about the answer to that question.
It is, of course, a number of questions. Borders do different things for the movement of goods, the movement of people, the movement of animals and many other things. But I point to three things that are important. First, on goods, the Government have suggested that there may be a technological solution by which tariffs do not require a hard border—meaning installations at the particular line of demarcation—but are dealt with, quite handily, by electronic means and previous preparation of detailed dossiers on the content of each, in this case, lorry rather than container. It is a seductive view, but it is radically incomplete.
The Government have also on occasion suggested that they would be happy to see small traders, as it were, fall below the radar for enforcement. In the island of Ireland we are quite good at subcontracting the movement of things to small traders if that is advantageous. It has been done for various commodities. One need only think of diesel for a good example. It has also been done to my knowledge for various other things such as getting double subsidies on animals—I will come back to animals in a moment—by having the headish payment both north and south of the border. We have to expect that, as we get divergence of legislation and regulation north and south of the border, the incentives for what I believe are these days called “imaginative arrangements” will grow and will be a matter of subcontracting to the small traders. I do not believe that the electronic fantasy is more than part of the solution to the movement of goods, which speaks directly to whether we expect a customs union or the customs union to continue or whether it does not. I suppose these small traders might be looking forward to the latter solution, but I do not think they really are.
The movement of peoples seems very important. We have entirely free movement of peoples on the island of Ireland. That has not always been so, but we have it again. It is fundamental to life. But if people enter from the European Union into the Republic of Ireland, where they will have freedom of movement, they can then go to the north—to the UK—and come over here without passports. I find that quite a lot of my noble friends are not really aware of that, probably because, when they go to Ireland, they go by air and have to show a passport. It is not necessary, however, to show a passport when crossing the Irish Sea. That is one of the meanings of the phrase “common travel area” and has been with us since the 1920s. It is, incidentally, much stronger than the Schengen arrangements because, in the common travel area, when we move across from one jurisdiction, the UK, to another, the Republic of Ireland, we can vote and we can serve in the armed services. These are real differences. This is a deep and long-standing arrangement. However, it means that people will have to identify themselves—for example, when taking a job or when going to a National Health Service hospital for an operation—to be sure that they are entitled. That is what that one word, “passport”, meant.
Passports are quite expensive, but we have to accept that these days they will have to be biometrically enabled. I think, however, of all the families who live in cities on either side of the Irish Sea and who travel to and fro, often with quite a large number of children. It is a non-negligible matter to think about the movement of people. There is another factor here. It is not only people who live in the north and in the Republic who will have to have passports or ID; it is all our fellow citizens on this island, because you cannot enforce entitlements unless the good guys as well as the bad guys are checked. That means passports for everyone. That means ID cards.
I am not against ID cards, and I think I even have a suggestion about how it might be done, taking a leaf out of the arrangements in a number of states in the  United States, where they have invented a delicious document called the non-driving driving licence. The non-driving driving licence enables people who are non-drivers in, say, the state of Connecticut to get an equivalent licence in another state, which does not entitle them to drive but enables them to have a drink—so it is really important. One of our better bureaucracies is the DVLA, and it might perhaps be able to think out how a system of non-driving driving licences could be a model for the driving licence that has served as an ID card over here.
One obstacle to this is that many, but not all, on the Conservative Benches have a thing about ID cards. But one has to get real and get up to date. Many of my friends on the Conservative Benches carry smartphones, which give away far more details about what they are up to at any given moment than any driving licence, passport or ID document does. We need to start talking about these things and not just making gestures towards passports or electronic tariffs.
Finally, I want to talk about the movement of beasts. When I speak on this topic, I always come back to beasts because they are notably mobile. Much more importantly, plant health does not recognise borders. We must have arrangements for plant and animal health that will not depend on the enforcement of a border. I hear no discussion of this. For example, have the Government considered delegating what Brussels likes to call phytosecurity, and we prefer to call biosecurity, to Stormont—let us hope it is up and running—with the proviso that it may not go below EU or UK standards? That would put, as it were, a double lock on animal and plant safety and standards in Northern Ireland, which would not be the worst of worlds.
These are the sort of problems that need addressing soon and urgently if people are to have confidence in the Government’s commitment to the Belfast agreement and the principles that underpin it. I do not wish to be alarmist, but I do not think we should take for granted anything that might happen if we do not address these questions. Recently, I have been reading about events just before and during the First World War, when we saw the Home Rule debacle, the Easter Rising, the Irish war of independence and the Irish civil war—possibly the most terrible of them all. We are playing with fire. I hope the Government are listening and I hope they will take the principles of the Good Friday agreement as setting a demand for action and not just for rhetoric.

Lord Lang of Monkton: My Lords, after roaming around the various amendments to the government amendment, I would like to steer us back to the government amendment itself, which I support and which I hope will form a pathway to getting this matter resolved. I am afraid my remarks will be mainly focused on Scotland, where the battle has been fiercest, but I will refer to the other devolved Administrations in the context of the generality.
We have got here by a tortuous route of JMC meetings, consultations, arguments and a lot of delay. I acknowledge the willingness of the Government, in particular, to try to follow this approach of constantly  being willing to participate in discussions and consultations. Much reference has been made in earlier debates to the spirit of devolution, to which the intergovernmental relations paper published by the Constitution Committee some time ago referred—indeed, we argued for many things, including some just referred to by the noble Lord, Lord McConnell. Given where we are in this farrago of committee meetings and consultations and rebuffs and demands and arguments about “consent” and “consult”, it is a relief to have an amendment to the Bill around which we can debate and, I hope, remove the deadlock.
I prefer to start by reference to a component of the debate that seems to have been notable by its absence in discussion until my noble and learned friend Lord Keen raised it in the last debate, namely the Sewel convention. When the Scottish Act of 1978 was going through Parliament, I asked my lamented and good friend Lord MacKay of Ardbrecknish what it was all about. It was not called the Sewel convention at that stage. He said, “Oh, it’s a good-will measure. When we and the Scottish Government both want to legislate on the same subject, we’ll offer to do it for them to avoid duplication”. If only. The spirit of devolution may have been alive then, but it has taken a battering since. The finished version has turned out a bit differently. Far from being a good-will gesture to foster harmonious relations, it has become a battleground on which Parliament seems under constant challenge, with one visit already to the Supreme Court and another allegedly brewing. That is not the spirit of devolution.
The Government deserve credit for endless trust and courtesy, but their patience has gone unrewarded. It seems that they are left with no alternative but to act as they now propose. The noble Lord, Lord Thomas of Gresford, who I am glad to see in his place, said in an earlier debate that it is a pity that devolution has got tangled up with the Brexit Bill. I absolutely agree with him—I wish they could have been taken separately—but it obviously is not possible. We are where we are. In the much larger arena of the Brexit negotiations, the challenge of this Bill is full of difficulties and complex issues. No solution is easy, but the Government have to make progress to keep to the timetable. In that context, I think reference to the Sewel convention makes clear that Parliament can legislate on devolved matters. That is an important point to remember and one that could have been prayed upon at the very outset as an alternative route to securing a satisfactory conclusion. Of course it is not something to do lightly, but we in the devolved Administrations need a solution. The word “normally” offers a key to this. There can surely be nothing less normal in the world of law-making than legislation to retrieve to our shores from the European Union over 40 years of legislative activity against a tight deadline and in advance of the moment of transfer—a retrieval that is vital to the maintenance of the rule of law as Brexit takes place. If that is not abnormal as an event, I do not know what is.
The Scotland Act and the Wales Act, as amended, and the convention are the nearest we can get to a stable base on which the devolution settlements can have some hope of harmonious survival, provided all parties respect that base. Enoch Powell’s dictum that power devolved is power retained has to prevail or the  centre cannot hold, but sovereignty can be courteously delivered and received. The Government’s record on that is good. The Bill respects it and the guarantees that the Government have given. It specifically guarantees that no existing devolved power will be changed. Everything already devolved stays devolved. The area of dispute is a narrow, temporary and reducing one. As the Government’s amendment concerning EU powers being brought into the UK for the first time demonstrates—under the EU treaties, those powers must be transferred to the nation state in the first instance—the vast majority will go straight through to the devolved Administrations. Only those powers temporarily reserved that affect national frameworks, on which the devolved Administrations reached agreement in principle as long ago as last October, will be frozen en route until the frameworks can be decided upon. My noble and learned friend the Advocate-General covered that matter very effectively in his speech in the previous debate.
I respect the principles advanced by noble Lords and their sensitivity over matters that they point out are devolved, but there are other factors that again, in the spirit of devolution, could be deemed worthy of some movement by the devolved Administrations. These competencies and my noble and learned friend’s speech were very helpful on this—indeed, it makes my own speech almost redundant from now on, but I will make it anyway. These competencies coming home from the European Union were not ours to devolve before and do not necessarily fit in under the headings of what is claimed as devolved. They were not ours to devolve before; they are in many ways new and additional and reflect the changed legislative priorities that have evolved over the past 40 years. I just give one simple example of that change in agriculture: 40 years ago, we had a Ministry of Agriculture; now we have a Department for Environment, Food and Rural Affairs—a very much changed animal. Virtually all these new powers will as soon as possible end up with the devolved Administrations.
I do not know how the Government could do more without jeopardising its obligations to the United Kingdom as a whole. This Parliament is the only one that can negotiate the Brexit deal—the outcome will after all form part of an international treaty—and this Parliament is the Parliament of Scotland, Wales and Northern Ireland, as well as of England and the United Kingdom. I sometimes think that Scotland’s First Minister occasionally forgets that the Prime Minister is also her Prime Minister and that the Westminster Government—as the SNP derisively refers to us, as though we were a foreign power—are also Scotland’s Government as well as that of the other parts of the UK. It is the Prime Minister who can protect the First Minister from herself by ensuring that Scotland remains in the UK, as its people decided only three years ago, and this in the United Kingdom’s single market, which is the mainstay of Scotland’s economy. As I think all your Lordships now know, it takes four and half times more exports than the entire European Union does.
Yet still they rage against the light. The intransigence shown by the Scottish Administration was always likely to emerge. I diverge here from my noble and learned friend Lord Mackay of Clashfern—though  fortunately not on a legal point—as I believe it was always going to emerge, and it is what the Scottish Government mean by “negotiation”, because they are working to a different agenda, an agenda with only one item on it: independence. Everything in every area of government in Scotland is subservient to that, hence the neglect that we see of education, the economy and all the other matters that are their responsibility. If they can find of way of turning everything that happens into a source of grievance, they will do so. Grievance is their default position. They would make a grievance out of a ray of sunshine if they thought it would help their cause. Where in that Administration is the spirit of devolution? There is no power grab in the measures proposed in the government amendment, quite the reverse; it is a power bonanza. The devolved Administrations should welcome it as a ray of sunshine.

Lord Lang of Monkton: My Lords, I too regret having to refer to the behaviour of the Scottish National Party and its constant attempts to find issues on which it can exercise grievance, but that is what is happening. It is because of that attitude that we are where are now and that the consultations that were allegedly going extremely well throughout the earlier months have run up against a time limit. We are blinding ourselves to reality if we do not take account of the fact that the  Scottish Administration has a completely different agenda from this one—notwithstanding the bonhomie of Mr Russell, which my noble and learned friend Lord Mackay of Clashfern was fortunate enough to encounter. I regret having to say it, but it has to be said, otherwise we are blinding ourselves to reality.
I do not dismiss the Government’s past willingness to consult patiently and, again, I respect their willingness to withdraw this amendment so that it can be further debated and discussed. That is entirely in line with the path that they have pursued, which is creditable and desirable. How I wish the other participants in these discussions could unanimously take the same approach. It is a tribute to the constitutional proprieties that we all like to see, seeking as the Government did to negotiate in good faith, to find a route that would not require them to assert the sovereignty of this Parliament. But it did not work in this context and I do not think it was ever going to work. In the end, the supremacy of the union must come first, as another Constitution Committee report, The Union and Devolution, recently suggested.

Lord McConnell of Glenscorrodale: I absolutely endorse the description by the noble Baroness of the way consent works in that situation: whether or not involved Ministers lead the delegation, sit on the delegation or are consulted in advance of the delegation to the Council of Ministers, it is the case that the responsibility for implementing the directives agreed transfers directly to them, not through the UK Government, and they then implement those directives. The noble Baroness is right when she says that that means that the consent is given, but it also reinforces the argument that that responsibility lies there and not through the UK Government any more—that is the result of the devolution settlement.